TONY SUTTON A/K/A BRIAN HEADLEY, PETITIONER V. UNITED STATES OF
AMERICA
No. 90-5952
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court of
Appeals For The Third Circuit
Brief For The United States In Opposition
OPINION BELOW
The judgment order of the court of appeals (Pet. App. A1-A2) is not
reported.
JURISDICTION
The judgment of the court of appeals was entered on July 18, 1990.
The petition for a writ of certiorari was filed on October 12, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether 18 U.S.C. 3553(e) and Sentencing Guideline Section
5K1.1, which provide that the district court may sentence a defendant
who has cooperated with the government below the statutory minimum and
recommended Guidelines range only "upon motion of the Government,"
violate the Due Process Clause.
2. Whether the district court has authority to review the
government's refusal to file a "substantial assistance" motion and
then impose a sentence below the statutory minimum and recommended
Guidelines range.
STATEMENT
After pleading guilty in the United States District Court for the
Eastern District of Pennsylvania, petitioner was convicted on one
count of conspiring to distribute cocaine base and marijuana (Count
1), in violation of 21 U.S.C. 846, and one count of distributing
cocaine base (Count 34), in violation of 21 U.S.C. 841(a)(1). He was
sentenced to concurrent terms of 12 years' imprisonment, to be
followed by a five-year term of supervised release. The court of
appeals affirmed.
1. Petitioner worked for a large-scale narcotics ring led by his
brother-in-law, Robert Smith, that operated in Philadelphia. On May
5, 1988, petitioner was arrested at a grocery store used by Smith's
organization, after petitioner sold two vials of cocaine base to an
undercover police officer. Pet. C.A. App. A24-A25. In December 1988,
petitioner, Smith, and 21 other members of the organization were
indicted in the Eastern District of Pennsylvania on various narcotics
charges arising out of the organization's activities. Petitioner was
charged with one count of conspiring to distribute cocaine base and
marijuana (Count 1), in violation of 21 U.S.C. 846, one count of
distributing cocaine base (Count 34), in violation of 21 U.S.C.
841(a)(1), one count of distributing cocaine base within 1000 feet of
an elementary school (Count 35), in violation of 21 U.S.C. 845a, and
one count of possessing cocaine base with intent to distribute it
(Count 36), in violation of 21 U.S.C. 841(a)(1).
In early April 1989, and before trial, petitioner and the
government entered into a plea agreement. Under the agreement,
petitioner agreed to plead guilty to Counts 1 and 34, and to
"cooperate fully and truthfully with the Government * * * (by)
provid(ing) truthful, complete and accurate testimony and information
(regarding any criminal activity known to him)." Pet. C.A. App.
A10-A11. In return, the government agreed to move to dismiss Counts
35 and 36 of the indictment at sentencing, and also agreed
(i)f (it) in its sole discretion determines that (petitioner)
has fulfilled his obligations of cooperation, * * * (to) bring
(petitioner's) cooperation to the attention of the Court at the
time of sentencing and to file a motion under 18 U.S.C. Section
3553(e) that (petitioner) has rendered substantial assistance in
the investigation and prosecution of other persons who have
committed offenses.
Pet. C.A. App. A12-A13.
On April 18, 1989, petitioner -- under the cooperation agreement
outlined above -- pleaded guilty to the two narcotics offenses. At
the request of both petitioner and the government, the district court
deferred setting a sentencing date, based on the representation of
petitioner's counsel that petitioner "has been cooperating with the
government and will be continuing to do so." Pet. C.A. App. A37.
As a result of the agreement, petitioner testified in July 1989 as
a government witness at Robert Smith's trial on the outstanding
indictment. Despite admitting that he had seen Smith "(q)uite a few
times" during the 11 years petitioner had known him, Pet. C.A. App.
A45, and acknowledging that Smith was married to his sister,
petitioner stated -- on four separate occasions in response to the
prosecutor's questions -- that he did not see Smith in the courtroom,
id. at A44-A45. Petitioner also testified that he was smoking cocaine
at Smith's store on the morning of May 5, 1988, when a
guy * * * turned to (him and) said that this next guy that is
going to walk in the store, given him these two crack and take
the money from him and then that is what (petitioner did).
Id. at A54. Petitioner recounted that he was arrested soon after
selling the narcotics, and denied that he had sold cocaine on any
other occasion. Id. at A54-A55, A61, A65.
2. In August 1989, petitioner filed a motion in the district court
seeking dismissal of his counsel, appointment of new counsel, and
withdrawal of his guilty plea. Pet. C.A. App. A68-A71. The district
court on September 14 granted petitioner's motion to dismiss his
counsel and appointed new counsel under the Criminal Justice Act. Id.
at A73-A74. After a hearing, petitioner's newly appointed counsel --
with the court's permission -- withdrew petitioner's request to change
his guilty plea. Id. at A77.
On September 27, petitioner filed a motion in the district court to
compel specific performance of the government's obligations under the
cooperation agreement. Pet. C.A. App. A89-A97. Petitioner claimed
that his "inability to make an in-court identification of Robert Smith
was not deliberate or intentional and did not violate the terms of his
Plea Agreement," and that he "has materially complied with all
obligations pursuant to the Plea Agreement." Id. at A91-A92.
Accordingly, petitioner asked the court to order the government to
"give (him) the benefit of his bargain (by filing) a motion pursuant
to 18 U.S.C. 3553(e)." Id. at A92.
The government opposed petitioner's motion, stating that when
called as a witness in Robert Smith's trial, petitioner "gave
testimony which was not wholely (sic) truthful and which was not in
accord with the obligations set forth in his Plea Agreement." Pet.
C.A. App. A104. The government noted that
(d)uring the course of that testimony (petitioner) knowingly
failed to make an in court identification of Robert Smith * * *,
in spite of the fact that he has known Robert Smith for over
eleven years, and was given two opportunities by the Court to
attempt an identification.
Ibid. Moreover, the government pointed out that petitioner
cast doubt upon the truthfulness of his testimony by immediately
filing a pro se motion to withdraw his plea agreement and to
remove his prior counsel * * * on the grounds that he was
threatened physically by Government prosecutors in the presence
of (counsel), told to lie and to act below standards or human
decency, therefore denying him due process of law.
Ibid. Finally, the government stated that it was "forced to conclude
that the information provided by (petitioner) is untrustworthy,
unreliable, and void of veracity." Id. at A105. In so concluding, the
government cited petitioner's suspect
motives in light of the fact that his brother * * * and sister *
* * have all at one time or another conspired or combined with
leader Robert Smith to sell drugs in New York City and/or
Philadelphia, Pennsylvania.
Ibid. The government therefore informed the court that it would not
file a "substantial assistance" motion under 18 U.S.C. 3553(e), since
"(i)t is clear that attempts at cooperation by (petitioner) were not
performed in good faith." Pet. C.A. App. A105.
3. In December 1989, after a hearing, the district court denied
petitioner's motion. Pet. App. A4-A6. The court observed that
specific performance of a plea agreement might be required if "an
unscrupulous prosecutor" in bad faith refused to file a substantial
assistance motion despite the defendant's complete cooperation. Id.
at A5. Here, the court determined, the government did not abuse its
discretion in refusing to file a motion under Section 3553(e). The
court found that "for the Government to say that cooperation has not
been substantial in the parlance of the agreement, there is sufficient
basis for their taking that position." Pet. App. A5. Accordingly, the
court held that it would "not dislodge the agreement that was entered
into nor compel the Government to make the motion which is in their
sole discretion." Id. at A5-A6.
The court thereafter sentenced petitioner to concurrent terms of 12
years' imprisonment -- a sentence that was both within the Guidelines
range of 135-168 months' imprisonment and above the five-year
mandatory minimum sentence required by 21 U.S.C. 841(b)(1)(B)(iii).
See Pet. C.A. App. A167-A170.
4. In the court of appeals, petitioner contended that 18 U.S.C.
3553(e) and Sentencing Guideline Section 5K1.1, which provide that the
district court may sentence a defendant who has cooperated with the
government below the statutory minimum and recommended Guidelines
range only "upon motion of the Government," violate the Due Process
Clause. Pet. C.A. Br. 10-12. Petitioner also contended that the
district court erred in refusing to exercise its authority to grant a
downward departure despite the government's refusal to file a
"substantial assistance" motion. Pet. C.A. Br. 13.
The court of appeals dismissed petitioner's appeal to the extent it
challenged the district court's failure to depart downward from the
Guidelines range, Pet. App. A2 (citing United States v. Denardi, 892
F.2d 269, 271-272 (3d Cir. 1989), and otherwise summarily affirmed the
judgment of conviction, Pet. App. A1.
ARGUMENT
1. Petitioner contends (Pet. 6-8) that 18 U.S.C. 3553(e) and
Sentencing Guideline Section 5K1.1, which provide that the district
court may sentence a defendant who has cooperated with the government
below the statutory minimum and recommended Guidelines range only
"upon motion of the Government," violate the Due Process Clause. To
date, the courts of appeals have uniformly upheld the
constitutionality of the "substantial assistance" provisions. /1/ And
this Court has consistently declined to review that issue. E.g.,
Francois v. United States, cert. denied, 110 S. Ct. 1822 (1990);
Ayarza v. United States, cert. denied, 110 S. Ct. 847 (1990); Huerta
v. United States, cert. denied, 110 S. Ct. 845 (1990). Petitioner
offers no persuasive reason for the Court to adopt a different
approach in this case. /2/
In any event, petitioner's contention is meritless. Section
3553(e) of Title 18 provides that "(u)pon motion of the Government,
the court shall have the authority to impose a sentence below a level
established by statute as minimum sentence so as to reflect a
defendant's substantial assistance in the investigation or prosecution
of another person who has committed an offense." Sentencing Guideline
Section 5K1.1 similarly provides that a court may depart from the
Guidelines' sentencing range "(u)pon motion of the Government stating
that the defendant has provided substantial assistance" to the
government. The framework under those "substantial assistance"
provisions comports with the Due Process Clause because in the absence
of any "right to individualized sentencing, * * * Congress may
constitutionally * * * constrain the exercise of judicial discretion."
United States v. Huerta, 878 F.2d 89, 94 (2d Cir. 1989), cert. denied,
110 S. Ct. 845 (1990).
As this Court has recognized, "the authority to define and fix the
punishment for crime is legislative." Ex parte United States, 242 U.S.
27, 42 (1916). Accordingly, "in noncapital cases, the (formerly)
established practice of individualized sentences rests not on
constitutional commands, but on public policy enacted into statutes."
Lockett v. Ohio, 438 U.S. 586, 604-605 (1978); see also Sumner v.
Shuman, 483 U.S. 66, 75 (1987); McMillian v. Pennsylvania, 477 U.S.
79, 92 (1986). In cases involving neither capital punishment nor life
imprisonment, e.g., Solem v. Helm, 463 U.S. 277 (1983), this Court has
never questioned the legislature's authority to divest courts of
sentencing discretion by establishing mandatory minimum punishments.
See, e.g., Mistretta v. United States, 488 U.S. 361, 364-365 (1989);
Lockett v. Ohio, 438 U.S. at 603; accord United States v. Dombrowski,
877 F.2d 520, 530-531 (7th Cir. 1989); United States v. Kidder, 869
F.2d 1328, 1330-1334 (9th Cir. 1989). In other words, Congress could
have constitutionally eliminated sentencing discretion entirely by
imposing mandatory minimum sentences in all noncapital cases.
For that reason, Congress may certainly take the less drastic
measure of permitting sentencing judges to depart from mandatory
minimum sentences only where prosecutors certify that such a departure
is justified because of the accused's "substantial assistance" to the
government. Moreover, since Congress delegated to the Sentencing
Commission the authority to regulate the sentencing process, a
defendant has no more of a constitutional right to a "substantial
assistance" reduction in his sentence under the Guidelines than he
does under the Sentencing Reform Act. See, e.g., United States v.
Lewis, 896 F.2d 246, 249 (7th Cir. 1990). As the Eleventh Circuit
recently observed, "(i)f, despite their inflexibility, mandatory
sentencing provisions withstand due process scrutiny, so too must the
sentencing guidelines." United States v. Erves, 880 F.2d 376, 379
(11th Cir. 1989).
2. Petitioner next contends (Pet. 9-10) that the district court has
authority to review the government's refusal to file a "substantial
assistance" motion and then impose a sentence below the statutory
minimum and recommended Guidelines range. But as the courts of
appeals have consistently and correctly held, a sentencing court has
no authority to impose -- on "substantial assistance" grounds --
sentence below the statutory minimums or the Guidelines ranges in the
absence of a motion by the government. See, e.g., United States v.
LaGuardia, 902 F.2d 1010, 1013-1017 (1st Cir. 1990); United States v.
Alamin, 895 F.2d 1335, 1337 (11th Cir. 1990); United States v.
Coleman, 895 F.2d 501, 504-505 (8th Cir. 1990); United States v.
Francois, 889 F.2d 1341, 1345 (3d Cir. 1989), cert. denied, 110 S. Ct.
1822 (1990).
The prerogative accorded to the government by Congress and the
Sentencing Commission in promulgating the "substantial assistance"
provisions is akin to the "exclusive authority and absolute
discretion" the government exercises in determining whether to
prosecute, United States v. Nixon, 418 U.S. 683, 693 (1974), or what
charges to bring, United States v. Batchelder, 442 U.S. 114, 124-125
(1979); see United States v. Huerta, 878 F.2d at 92. Like decisions
about whether and how to prosecute, the government's decision not to
file a "substantial assistance" motion is not subject to judicial
review. Id. at 94; see also United States v. Kuntz, 908 F.2d 655,
657 (10th Cir. 1990).
To be sure, as petitioner points out (Pet. 9-10), several courts of
appeals have left open the question whether the bad faith refusal by
the government to file a "substantial assistance" motion is subject to
judicial scrutiny. See United States v. LaGuardia, 902 F.2d at 1017 &
n.6; United States v. Poston, 902 F.2d 90, 100 n.11 (D.C. Cir. 1990);
United States v. Justice, 877 F.2d 664, 668-669 (8th Cir. 1989);
United States v. White, 869 F.2d 822, 829 (5th Cir. 1989). That
issue, however, is not presented here. First, petitioner has never
even alleged that the prosecutor's action was taken in bad faith.
Second, the district court specifically found that the prosecutor's
refusal to file a "substantial assistance" motion -- on the record
presented -- was a proper exercise of his discretion, see Pet. App.
A5, and the court of appeals did not disturb that determination. /3/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
ROBERT J. ERICKSON
Attorney
DECEMBER 1990
/1/ See, e.g., United States v. LaGuardia, 902 F.2d 1010, 1013-1017
(1st Cir. 1990); United States v. Lewis, 896 F.2d 246, 249 (7th Cir.
1990); United States v. Francois, 889 F.2d 1341 1343-1345 (3d Cir.
1989), cert. denied, 110 S. Ct. 1822 (1990); United States v. Huerta,
878 F.2d 89, 91-94 (2d Cir. 1989), cert. denied, 110 S. Ct. 845
(1990); United States v. Grant, 886 F.2d 1513, 1513-1514 (8th Cir.
1989); United States v. Ayarza, 874 F.2d 647, 653 (9th Cir. 1989),
cert. denied, 110 S. Ct. 847 (1990); United States v. Musser, 856
F.2d 1484, 1487 (11th Cir. 1988), cert. denied, 109 S. Ct. 1145
(1989).
/2/ The contrary conclusions -- as opposed to decision -- reached
by the district court in United States v. Roberts, 726 F. Supp. 1359
(D.D.C. 1989), appeal pending, No. 90-1018 (D.C. Cir.), do not create
a conflict warranting this Court's review, particularly when, as
petitioner concedes (Pet. 7), that decision remains pending on appeal
before the District of Columbia Circuit.
/3/ Indeed, we are not aware of any court of appeals' decision
holding that the prosecutor's refusal to file a "substantial
assistance" motion was taken in bad faith. Compare United States v.
Brown, 912 F.2d 453 (10th Cir. 1990); United States v. Spees, 911
F.2d 126 (8th Cir. 1990); United States v. Smitherson, 889 F.2d 189
(8th Cir. 1989).
To the extent petitioner claims (Pet. 10-11) that the courts below
erred in refusing to overturn the prosecutor's discretionary decision
not to file a "substantial assistance" motion, that contention is
without merit. Under the express terms of the plea agreement,
petitioner was to "cooperate fully and truthfully with the Government
* * * (by) provid(ing) truthful, complete and accurate testimony and
information (regarding any criminal activity known to him)," Pet. C.A.
App. A10-A11, and the government, "in its sole discretion," was to
determine whether petitioner "has fulfilled his obligations of
cooperation," id. at A12. The plea agreement thus gave the prosecutor
the same expansive prerogatives as the "substantial assistance"
provisions themselves. See United States v. Rexach, 896 F.2d 710,
713-715 (2d Cir. 1990), cert. denied, No. 90-5212 (Nov. 13, 1990).
Petitioner could, of course, have refused to enter into a plea
agreement that gave the prosecutor such broad discretion. Since
petitioner did not do so, he may not now complain about the lower
courts' refusal to overturn the prosecutor's discretionary decision
under the express terms of the negotiated agreement.